Wefapres Workstroffe Beck and Company CHBC v. Kingsley Industries P. Ltd
1993-06-08
S.M.JHUNJHUNUWALA
body1993
DigiLaw.ai
JUDGMENT- S.M. JHUNJHUNUWALA, J.:---The disputes arising out of or relating to the Agreement for Trasnfer of Technology dated 5th June, 1986 entered between the petitioner and respondent were referred to arbitration in accordance with the Arbitration Rules of the Indo-German Chamber of Commerce, Bombay and an Award dated 1st August, 1991 was made which was filed in this Court and numbered as Award No. 157 of 1991. Notice of filing of the said Award in this Court was served both upon the petitioner and respondent. No petition to set aside, remit or remand the said Award was filed. On 24th March, 1992, Judgment and Decree in terms of the said Award was passed by this Court. At that time, no application was made on behalf of the petitioner for grant of interest on the decretal amount from the date of the decree till payment or realisation thereof. The present petition has been filed for review of the said Order and decree passed on 24th March, 1992 so as to grant interest to the petitioner on the decretal amount at the rate of 21% per annum or at such other rate as may be deemed fit by this Court from the date of the said decree till payment or realisation of the decretal amount. 2. Ms. Shah, the learned Counsel appearing on behalf of the petitioner has submitted that under section 29 of The Arbitration Act, 1940, this Court has the power to award interest on the decretal amount from the date of the decree till payment or realisation thereof. She has further submitted that the omission to apply for grant of such interest at the time of passing of the said decree was due to inadvertance. 3. Mr. Bhatt, the learned Advocate appearing for the respondent, has submitted that the present petition filed on behalf of the petitioner is misconceived inasmuch as no ground for review of the Order and decree passed by this Court on 24th March, 1992 has been made out by the petitioner. He has further submitted that since there was no agreement to pay interest to the petitioner, no interest was awarded to the petitioner by the arbitrators and no application for grant of interest under section 29 of the said Act was made on behalf of the petitioner at the time of applying for decree in terms of the said Award.
He has further submitted that since there was no agreement to pay interest to the petitioner, no interest was awarded to the petitioner by the arbitrators and no application for grant of interest under section 29 of the said Act was made on behalf of the petitioner at the time of applying for decree in terms of the said Award. While submitted that alleged inadvertance is no ground for review of the Order and decree passed on 24th March, 1992, the respondent has denied that the application for grant of interest on the decretal amount from the date of the said decree till payment or realisation was not made on behalf of the petitioner due to inadvertance either on the part of the petitioner or the learned Counsel then appearing for the petitioner. Mr. Bhatt has also submitted that the petitioner is not entitled to interest from the date of the said decree under section 29 of the said Act read with section 34 of the Code of Civil Procedure, 1908. 4. It is an admitted position that at the time when application on behalf of the petitioner was made on 24th March, 1992 for judgment and decree in terms of the said Award, no application was made under section 29 of the said Act for awarding interest to the petitioner on the principal sum as adjudged by the said Award and confirmed by the decree of this Court. Where and in so far as an award is for the payment of money, under section 29 of the said Act, the Court is empowered to award interest from the date of the decree on the principal sum as adjudged by the award and confirmed by the decree. The power to award such interest is discretionary. The power of this Court to order payment of interest on principal sum as adjudged by the award and confirmed by the decree is regulated by section 29 of the said Act and not by section 34 of the Code of Civil Procedure, 1908. In the present case, the said Award has been for payment of money by the respondent to the petitioner as awarded thereunder and as such, this Court could have considered the application for grant of interest from the date of the said decree on its merits if made on behalf of the petitioner.
In the present case, the said Award has been for payment of money by the respondent to the petitioner as awarded thereunder and as such, this Court could have considered the application for grant of interest from the date of the said decree on its merits if made on behalf of the petitioner. However, since no such application was admittedly made, the question of awarding interest from the date of the said decree on the principal sum as adjudged by the said Award and confirmed by the said decree was not considered and no such interest was awarded to the petitioner. 5. The power of review has to be created by a Statute. When power to review is so conferred on a Court, such power should be exercised in accordance with the statutory provisions and in the circumstances stated therein. Under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 read with section 114 thereof, an application for review of a decree or decision may be made in the following cases : i) on the ground of the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the party or could not be produced by him at the time when the decree was passed or order made; or ii) on account of some mistake or error apparent on the face of the record; or iii) for any other sufficient reason. In the instant case, neither there is discovery of new and important matter or evidence nor a mistake or error apparent on the face of the record. Alleged inadvertance to apply for grant of interest from the date of the said decree on 24th March, 1992 when it was passed is not a sufficient reason for allowing review thereof. 6. In the case of (Devidas Khushalrao Deshmukh and others v. Yeotmal Central Bank)1, reported in A.I.R. 1956 Nagpur 239, on which reliance has been placed by Ms. Shah, the judgment inadvertantly omitted to make provision for the payment of interest subsequent to the date fixed for redemption. It was held that the Court has power to correct the record and provide for the payment of interest from the date fixed for redemption.
Shah, the judgment inadvertantly omitted to make provision for the payment of interest subsequent to the date fixed for redemption. It was held that the Court has power to correct the record and provide for the payment of interest from the date fixed for redemption. It was furhter held that section 34(2) of the Code of Civil Procedure, 1908 would not stand in the way of the Court if the decree was not drawn up. However, on facts of the instant case, the said judgment has no applicability. In the result, the petition is dismissed with no order as to costs. Petition dismissed.